Citation Nr: 1025347
Decision Date: 07/08/10 Archive Date: 07/19/10
DOCKET NO. 03-12 918 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in New York, New
York
THE ISSUES
1. Whether new and material evidence has been received to reopen
a claim for entitlement to service connection for a right knee
disorder.
2. Entitlement to service connection for a right knee disorder.
3. Entitlement to service connection for a left knee disorder.
4. Entitlement to service connection for bilateral carpal tunnel
syndrome.
5. Entitlement to service connection for ulcers secondary to
service-connected adjustment disorder with mixed anxiety and
depressive symptoms.
6. Entitlement to a rating in excess of 10 percent for
lumbosacral strain.
7. Entitlement to a rating in excess of 50 percent for
adjustment disorder with mixed anxiety and depressive symptoms.
8. Entitlement to a compensable rating for right cubital tunnel
syndrome.
9. Entitlement to a compensable rating for left cubital tunnel
syndrome.
10. Entitlement to a rating in excess of 30 percent for migraine
headaches.
11. Entitlement to a total rating based on individual
unemployability (TDIU) due to service connected disabilities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
E.B. Joyner, Counsel
INTRODUCTION
The Veteran served on active duty from January 1993 to January
1995.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from February 2001, March 2007, and June 2008 rating
decisions by the Department of Veterans Affairs (VA) Regional
Office (RO) in New York, New York. The February 2001 rating
decision denied entitlement to a rating in excess of 30 percent
for migraine headaches. The March 2007 rating decision denied an
increased rating for right and left cubital tunnel syndrome,
denied service connection for bilateral carpal tunnel syndrome,
denied service connection for a left knee disorder, and denied
reopening of the claim for entitlement to service connection for
a right knee disorder. The June 2008 rating decision denied
entitlement to service connection for ulcers and denied increased
ratings for lumbosacral strain with arthritis, bone spurs, and
hemangioma, and for adjustment disorder with mixed anxiety and
depressed mood. The June 2008 rating decision also denied
entitlement to a TDIU.
In December 2009, a hearing before the undersigned Veterans Law
Judge was held at the RO (Travel Board hearing). A transcript of
that hearing is of record.
The Board notes that at the Travel Board hearing, in addition to
the issues listed on the title page of this decision, the
Veteran's representative indicated that the issue of entitlement
to service connection for a bilateral foot disability was on
appeal. However, the Board notes that in a March 2009 rating
decision, service connection was granted for bilateral plantar
fasciitis. This is a complete grant of the benefits sought on
appeal. Therefore, this issue is no longer on appeal and is not
currently before the Board. Grantham v. Brown, 114 F.3d 1156,
1159 (Fed. Cir. 1997).
The Board also notes that at the Travel Board hearing before the
undersigned, the Veteran provided testimony only on the bilateral
knee issues.
The RO originally denied service connection for abdominal pain in
a January 1996 rating decision. The RO notified the Veteran of
that decision in February 1996 and apprised her of her procedural
and appellate rights, but she did not initiate an appeal.
Therefore, the decision denying entitlement to service connection
for abdominal pain is final. 38 U.S.C.A. § 7105 (West 2002); 38
C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2009).
Subsequently, in December 2007, she filed the current claim at
issue - specifically, service connection for ulcers as secondary
to service-connected adjustment disorder. This specific issue,
her purported entitlement to service connection for ulcers, was
never previously adjudicated. The United States Court of Appeals
for the Federal Circuit (Federal Circuit Court) recently held
that claims that are based on distinctly and properly diagnosed
diseases or injuries must be considered separate and distinct
claims, such that a new and material evidence analysis is not
warranted. Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008);
see also Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) (a
newly diagnosed psychiatric disorder (e.g., PTSD), even if
medically related to a previously diagnosed disorder (such as
depressive neurosis), is not the same for jurisdictional purposes
when it has not been previously considered). Consequently, the
ulcers claim at issue must be considered on the full merits, de
novo, because there is no new and material evidence requirement
to reopen this claim because there is no prior, final
adjudication of this particular claim.
The issues of entitlement to service connection for right knee
disability, entitlement to service connection for a left knee
disability, entitlement to service connection for ulcers, and
entitlement to service connection for bilateral carpal tunnel
syndrome are addressed in the REMAND portion of the decision
below and are REMANDED to the Agency of Original Jurisdiction
(AOJ) via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. In an unappealed January 1996 rating decision, the RO denied
entitlement to service connection for right knee strain.
2. The evidence received since the January 1996 decision
includes evidence that is neither cumulative nor redundant of the
evidence previously of record, relates to an unestablished fact
necessary to substantiate the claim, and is sufficient to
establish a reasonable possibility of substantiating the claim.
3. The Veteran's lumbosacral strain is manifested by muscle
spasm, guarding, or localized tenderness that results in abnormal
spinal contour such as exaggerated lordosis; and mild bilateral
radiculopathy.
4. The Veteran's adjustment disorder with mixed anxiety and
depression is manifested by such symptoms of insomnia,
nightmares, panic attacks, isolation, memory and concentration
problems without evidence of active psychosis, and Global
Assessment of Functioning (GAF) scores attributable to anxiety
and depression generally ranging from 51 to 58, and has been
found by medical evidence to result in no more than occupational
and social impairment with reduced reliability and productivity
due to such symptoms.
5. The Veteran's bilateral cubital tunnel syndrome is
asymptomatic; there is no documented neurological deficit
consistent with cubital tunnel syndrome.
6. The Veteran's migraine headaches are manifested by
characteristic prostrating attacks occurring on average once a
month over the last several months; there is no evidence of very
frequent completely prostrating and prolonged attacks productive
of severe economic inadaptability.
7. At the Travel Board hearing in December 2009, prior to the
promulgation of a decision in the appeal, the Board received
notification from the appellant of her desire to withdraw her
appeal for the issue of entitlement to a TDIU.
CONCLUSIONS OF LAW
1. The January 1996 rating decision that denied service
connection for right knee strain is final. 38 U.S.C.A. § 7105
(West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2009).
2. New and material evidence has been received to reopen the
claim of entitlement to service connection for right knee
disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a)
(2009).
3. The criteria for a rating of 20 percent for the orthopedic
manifestations of the Veteran's lumbosacral strain have been met.
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.71a, Diagnostic Code
5235-5243 (2009).
4. The criteria for a separate 10 percent rating for the right
lower extremity neurological manifestations of the Veteran's
lumbosacral strain (mild incomplete paralysis of the sciatic
nerve) have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.25, 4.26,
4.124a, Diagnostic Code 8520 (2009).
5. The criteria for a separate 10 percent rating for the left
lower extremity neurological manifestations of the Veteran's
lumbosacral strain (mild incomplete paralysis of the sciatic
nerve) have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.25, 4.26,
4.124a, Diagnostic Code 8520 (2009).
6. The criteria for a rating in excess of 50 percent for
adjustment disorder with mixed anxiety and depressive symptoms
have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West
2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic
Code 9440 (2009).
7. The criteria for a compensable rating for right cubital
tunnel syndrome have not been met. 38 U.S.C.A. §§ 1155, 5103,
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159,
4.124a, Diagnostic Code 8515 (2009).
8. The criteria for a compensable rating for left cubital tunnel
have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West
2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic
Code 8515 (2009).
9. The criteria for a rating in excess of 30 percent for
migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5103,
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159,
4.124a, Diagnostic Code 8100 (2009).
10. The criteria for withdrawal of a Substantive Appeal on the
issue of entitlement to a TDIU have been met. 38 U.S.C.A.
§ 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
Review of the claims folder reveals compliance with the Veterans
Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq.
See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA
notice must inform the claimant of any information and evidence
not of record (1) that is necessary to substantiate the claim;
(2) that VA will seek to provide; and (3) that the claimant is
expected to provide. 38 U.S.C.A. § 5103(a); C.F.R.
§ 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In Pelegrini, the United States Court of Appeals for Veterans
Claims (Court) held that VCAA notice, as required by 38 U.S.C. §
5103(a), must be provided to a claimant before the initial
unfavorable adjudication by the RO.
The Court has also held that the VCAA notice requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five
elements of a service connection claim. Those five elements
include: 1) veteran status; 2) existence of a disability; 3) a
connection between the veteran's service and the disability; 4)
degree of disability; and 5) effective date of the disability.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court
held that upon receipt of an application for a service-connection
claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the evidence
presented with the claim and to provide the claimant with notice
of what information and evidence not previously provided, if any,
will assist in substantiating or is necessary to substantiate the
elements of the claim as reasonably contemplated by the
application. Additionally, this notice must inform a claimant
that a disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded. Id.
In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that
the VCAA notice requirements in regard to new and material
evidence claims require VA to send a specific notice letter to
the claimant that: (1) notifies him or her of the evidence and
information necessary to reopen the claim (ie., describes what is
meant by new and material evidence under either the old or new
standard); (2) identifies what specific evidence is required to
substantiate the element or elements needed for service
connection that were found insufficient in the prior denial on
the merits; and (3) provides general VCAA notice for the
underlying service connection claim.
In light of the favorable determination with respect to whether
new and material evidence has been submitted to reopen the
service connection claim for right knee disorder, and the need to
remand the service connection claim on the merits, no further
discussion of VCAA compliance is needed with respect to such
claim to reopen.
With respect to the remaining (increased rating) claims decided
herein, in letters dated in September 2004, March 2006, February
2008, April 2008, and July 2008, the RO provided notice to the
Veteran regarding what information and evidence is needed to
substantiate her claims, as well as what information and evidence
must be submitted by the Veteran and the types of evidence that
will be obtained by VA. Additionally, the April 2008 and July
2008 notice letters informed the Veteran as to disability ratings
and effective dates.
Because the notice pursuant to Dingess, supra, came after the
initial adjudication of the claim, the timing of the notice did
not comply with the requirement that the notice must precede the
adjudication. The timing deficiency was remedied by the fact
that the Veteran's claims were readjudicated by the RO in July
2008, September 2008, and November 2008, after proper VCAA notice
was provided and after the Veteran had an opportunity to
respond. Mayfield v. Nicholson, 444 F.3d 1328 (2006). The Board
concludes that the duty to notify has been met.
The record also reflects that VA has made reasonable efforts to
obtain relevant records adequately identified by the Veteran.
Specifically, the information and evidence that have been
associated with the claims file includes the Veteran's service
treatment records, VA treatment records and examination reports,
and private treatment records. Also of record and considered in
connection with the appeal are various written statements
submitted by the Veteran and her representative. There is also a
statement from the Veteran's employer of record.
As discussed above, the Veteran was notified and aware of the
evidence needed to substantiate her claims, the avenues through
which she might obtain such evidence, and the allocation of
responsibilities between herself and VA in obtaining such
evidence. The Veteran was an active participant in the claims
process, identifying pertinent medical evidence and submitting
evidence. Thus, she has been provided with a meaningful
opportunity to participate in the claims process and has done so.
Any error in the sequence of events or content of the notice is
not shown to have any effect on the case or to cause injury to
the Veteran. Therefore, any such error is harmless and does not
prohibit consideration of this matter on the merits. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also
ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).
Governing Laws and Regulations for Claim to Reopen
Generally, a claim which has been denied in an unappealed RO
decision or an unappealed Board decision may not thereafter be
reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West
2002). The exception to this rule is 38 U.S.C.A. § 5108, which
provides that if new and material evidence is presented or
secured with respect to a claim which has been disallowed, the
Secretary shall reopen the claim and review the former
disposition of the claim.
New evidence is defined as existing evidence not previously
submitted to agency decisionmakers. Material evidence means
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact necessary to
substantiate the claim. New and material evidence can be neither
cumulative nor redundant of the evidence previously of record,
and must raise a reasonable possibility of substantiating the
claim. 38 C.F.R. § 3.156(a).
For the purpose of establishing whether new and material evidence
has been submitted, the credibility of the evidence, although not
its weight, is to be presumed. Justus v. Principi, 3 Vet. App.
510, 513 (1992).
The Court has held that in determining whether new and material
evidence has been submitted, it is necessary to consider all
evidence added to the record since the last time the claim was
denied on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996)
(emphasis added).
Governing Laws and Regulations for Increased Rating Claims
Disability ratings are determined by applying the criteria set
forth in the VA Schedule for Rating Disabilities (Rating
Schedule) and are intended to represent the average impairment of
earning capacity resulting from disability. 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1. Disabilities must be reviewed in relation to
their history. 38 C.F.R. § 4.1. Other applicable, general
policy considerations are: interpreting reports of examination
in light of the whole recorded history, reconciling the various
reports into a consistent picture so that the current rating may
accurately reflect the elements of disability, 38 C.F.R. § 4.2;
resolving any reasonable doubt regarding the degree of disability
in favor of the claimant, 38 C.F.R. § 4.3; where there is a
question as to which of two evaluations apply, assigning a higher
of the two where the disability picture more nearly approximates
the criteria for the next higher rating, 38 C.F.R. § 4.7; and,
evaluating functional impairment on the basis of lack of
usefulness, and the effects of the disabilities upon the person's
ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski,
1 Vet. App. 589 (1991).
In order to evaluate the level of disability and any changes in
condition, it is necessary to consider the complete medical
history of the veteran's condition. Schafrath v. Derwinski,
1 Vet. App. 589, 594 (1991). However, where an increase in the
level of a service-connected disability is at issue, the primary
concern is the present level of disability. Francisco v. Brown,
7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that
a claimant may experience multiple distinct degrees of disability
that might result in different levels of compensation from the
time the increased rating claim was filed until a final decision
is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The
analysis in the following decision is therefore undertaken with
consideration of the possibility that different ratings may be
warranted for different time periods.
When an evaluation of a disability is based on limitation of
motion, the Board must also consider, in conjunction with the
otherwise applicable diagnostic code, any additional functional
loss the Veteran may have sustained by virtue of other factors as
described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet.
App. 202, 206 (1995). Such factors include more or less movement
than normal, weakened movement, excess fatigability,
incoordination, pain on movement, swelling, and deformity or
atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that
disability of the musculoskeletal system is primarily the
inability, due to damage or inflammation in parts of the system,
to perform normal working movements of the body with normal
excursion, strength, speed, coordination and endurance. A
finding of functional loss due to pain must be supported by
adequate pathology and evidenced by the visible behavior of the
claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80,
85 (1997).
With any form of arthritis, painful motion is an important factor
of disability. Joints that are actually painful, unstable, or
malaligned, due to healed injury, should be entitled to at least
the minimum compensable rating for the joint. Special note
should be taken of objective indications of pain on pressure or
manipulation, muscle spasm, crepitation, and active and passive
range of motion of both the damaged joint and the opposite
undamaged joint. 38 C.F.R. § 4.59.
Analysis
The Board has reviewed all the evidence in the appellant's claims
file. Although the Board has an obligation to provide adequate
reasons and bases supporting this decision, there is no
requirement that the evidence submitted by the appellant or
obtained on her behalf be discussed in detail. Rather, the
Board's analysis below will focus specifically on what evidence
is needed to substantiate each claim and what the evidence in the
claims file shows, or fails to show, with respect to each claim.
See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and
Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
I. Claim to Reopen
Service connection for right knee strain was denied in a January
1996 rating decision. The Veteran received notice of the denial
by letter dated in February 1996. The Veteran did not appeal the
decision; therefore, it became final. 38 C.F.R. § 20.1103.
The evidence of record at the time of the January 1996 denial
included the Veteran's service treatment records, which show that
the Veteran was treated for left knee strain in February and
March 1993. VA examination dated in July 1995 revealed normal
right knee with normal range of motion. No swelling, tenderness,
or instability was found. The claim was denied because (as
indicated by the RO) the in-service right knee problem was shown
to be a temporary condition which resolved with treatment; no
permanent residual disability was shown during service. (The
Board notes that the RO incorrectly identified the in-service
knee complaints as being right knee complaints; instead, the
record actually reflects left knee complaints in service.)
The subsequently received evidence includes VA and private
treatment records showing mild osteoarthritis of both knees (in a
private record from June 2005), small joint effusion of the right
knee (in a September 2005 private treatment record), and internal
derangement of the bilateral knees (in a September 2005 private
treatment record). A December 2007 magnetic resonance imaging
(MRI) of the right knee revealed mild chondromalacia along the
medial patellar facet with intermediate chondromalacia along the
medial aspect of the ossific trochlea. A March 2008 VA physical
therapy note indicates that the Veteran reported that she began
having bilateral knee pain two and a half years ago.
With respect to whether new and material evidence has been
submitted, the Board finds that the subsequently submitted
evidence is new and material and reopening of the claim is in
order. Specifically, when the claim was previously denied, there
was no current right knee disability. Because the subsequently
received evidence reflects that the Veteran currently has
multiple diagnoses regarding her right knee, the Board is of the
opinion that the evidence is new and material and reopening of
the claim is in order. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.
II. Increased Rating for Lumbosacral Strain
Disabilities of the spine are rated under the General Rating
Formula for Diseases and Injuries of the Spine (for Diagnostic
Codes 5235 to 5243, unless 5243 is evaluated under the Formula
for Rating Intervertebral Disc Syndrome Based on Incapacitating
Episodes). Ratings under the General Rating Formula for Diseases
and Injuries of the Spine are made with or without symptoms such
as pain (whether or not it radiates), stiffness, or aching in the
area of the spine affected by residuals of injury or disease.
The General Rating Formula for Diseases and Injuries of the Spine
provides a 10 percent disability rating for forward flexion of
the thoracolumbar spine greater than 60 degrees but not greater
than 85 degrees; or, forward flexion of the cervical spine
greater than 30 degrees but not greater than 40 degrees; or,
combined range of motion of the thoracolumbar spine greater than
120 degrees but not greater than 235 degrees; or, combined range
of motion of the cervical spine greater than 170 degrees but not
greater than 335 degrees; or, muscle spasm, guarding, or
localized tenderness not resulting in abnormal gait or abnormal
spinal contour; or, vertebral body fracture with loss of 50
percent or more of the height. A 20 percent disability rating is
assigned for forward flexion of the thoracolumbar spine greater
than 30 degrees but not greater than 60 degrees; or, forward
flexion of the cervical spine greater than 15 degrees but not
greater than 30 degrees; or, the combined range of motion of the
thoracolumbar spine not greater than 120 degrees; or, the
combined range of motion of the cervical spine not greater than
170 degrees; or, muscle spasm or guarding severe enough to result
in an abnormal gait or abnormal spinal contour such as scoliosis,
reversed lordosis, or abnormal kyphosis. A 30 percent disability
rating is assigned for forward flexion of the cervical spine 15
degrees or less; or, favorable ankylosis of the entire cervical
spine. A 40 percent disability rating is assigned for
unfavorable ankylosis of the entire cervical spine; or, forward
flexion of the thoracolumbar spine 30 degrees or less; or,
favorable ankylosis of the entire thoracolumbar spine. A 50
percent disability rating is assigned for unfavorable ankylosis
of the entire thoracolumbar spine. A 100 percent disability
rating is assigned for unfavorable ankylosis of entire spine. 38
C.F.R. § 4.71a.
The Notes following the General Rating Formula for Diseases and
Injuries of the Spine provide further guidance in rating diseases
or injuries of the spine. In pertinent part Note (1) provides
that any associated objective neurologic abnormalities,
including, but not limited to, bowel or bladder impairment,
should be rated separately under an appropriate diagnostic code.
Note (2) provides that, for VA compensation purposes, normal
forward flexion of the cervical spine is zero to 45 degrees,
extension is zero to 45 degrees, left and right lateral flexion
are zero to 45 degrees, and left and right lateral rotation are
zero to 80 degrees. Normal forward flexion of the thoracolumbar
spine is zero to 90 degrees, extension is zero to 30 degrees,
left and right lateral flexion are zero to 30 degrees, and left
and right lateral rotation are zero to 30 degrees. The combined
range of motion refers to the sum of the range of forward
flexion, extension, left and right lateral flexion, and left and
right rotation. The normal combined range of motion of the
cervical spine is 340 degrees and of the thoracolumbar spine is
240 degrees. The normal ranges of motion for each component of
spinal motion provided in this note are the maximum that can be
used for calculation of the combined range of motion. See also
Plate V, 38 C.F.R. § 4.71a.
In rating intervertebral disc syndrome based on incapacitating
episodes, with incapacitating episodes having a total duration of
at least six weeks during the past 12 months, a 60 percent
evaluation is warranted. With incapacitating episodes having a
total duration of at least four weeks but less than six weeks
during the past 12 months, a 40 percent evaluation is warranted.
With incapacitating episodes having a total duration of at least
two weeks but less than four weeks during the past 12 months, a
20 percent evaluation is warranted. With incapacitating episodes
having a total duration of at least one week but less than two
weeks during the past 12 months, a 10 percent evaluation is
warranted.
For purposes of assigning evaluations under Diagnostic Code 5243,
an "incapacitating episode" is a period of acute signs and
symptoms due to intervertebral disc syndrome that requires bed
rest prescribed by a physician and treatment by a physician. If
intervertebral disc syndrome is present in more than one spinal
segment, provided that the effects in each spinal segment are
clearly distinct, evaluate each segment on the basis of
incapacitating episodes or under the General Rating Formula for
Diseases and Injuries of the Spine, whichever method results in a
higher evaluation for that segment. 38 C.F.R. § 4.71a,
Diagnostic Codes 5235-5243.
Service connection for lumbosacral strain was granted in an
August 2006 rating decision. A 10 percent rating was granted,
effective July 9, 2001. The Veteran then filed a claim for
entitlement to an increased rating in December 2007.
Therefore, the Veteran's lumbosacral strain is rated as 10
percent disabling under the general criteria for rating
disabilities of the spine for the entire period on appeal. In
order to receive a higher rating based upon limitation of motion,
it must be shown that forward flexion of the thoracolumbar spine
is greater than 30 degrees but not greater than 60 degrees; or,
the combined range of motion of the thoracolumbar spine is not
greater than 120 degrees; or, there is muscle spasm or guarding
severe enough to result in an abnormal gain or abnormal spinal
contour such as scoliosis, reversed lordosis, or abnormal
kyphosis.
A September 2005 private orthopedic evaluation notes no angular
deformities. The Veteran had difficulty with heel and toe rise.
Forward flexion was to 80 degrees and extension was to 10
degrees. Rotation to the right and left was limited at the
extremes. Palpation about the lumbar spine revealed continued
tenderness about the paraspinal musculature with associated
diffuse spasm extending into the gluteal region with positive
sciatic notch tenderness bilaterally. There was normal sensation
to light touch in all dermatomes of the lower extremities. Deep
tendon reflexes were equal and symmetric. Straight leg raise was
to 85 degrees. Neurovascularly the Veteran was intact. The
impression was mechanical low back pain with possible
radiculopathy.
An April 2006 MRI of the lumbar spine revealed a mild posterior
disc bulge at L4-5, mild bilateral neuroforaminal narrowing at
L4-5, and facet hypertrophy at L4-5. At L5-S1 there was no bulge
or protrusion, but there was mild bilateral neuroforaminal
narrowing due to facet hypertrophy.
An August 2006 X-ray of the lumbosacral spine revealed minimal
scoliosis. An August 2006 VA examination report notes complaints
of low back pain which radiates to the right leg sometimes. The
Veteran does not use a walker, cane or brace. She can walk one
mile for one hour. She is not unsteady. She is independent in
eating, grooming, bathing, toileting, and dressing. Forward
flexion of the thoracolumbar spine was to 90 degrees. Backward
extension was to 24 degrees. Bilateral lateral flexion and
bilateral lateral rotation were all normal, to 30 degrees. The
Veteran had pain in the low back at the ends of flexion and
extension. Four repeated movements of the back showed an
increase in pain from 1/10 to 2/10; however, there was no change
in range of motion. There was also no increase in weakness or
fatigue. There was a mild increase in lack of endurance. Pain
was noted to have the most functional impact. There was evidence
of painful motion. There was spasm and tenderness in the
generalized lumbosacral spine area. There was no weakness and no
fixed deformity. Sensory examination was negative. Motor
examination was full and reflexes of the bilateral lower
extremities were normal. There was no diagnosis of
intervertebral disc syndrome. MRI of the lumbosacral spine from
June 2002 showed degenerative changes in L3-4 and L5-S1. There
was no herniated disc. The diagnoses were lumbosacral sprain,
degenerative facet hypertrophy, L4-5 and L5-S1, minimal
scoliosis, and bilateral neural foraminal narrowing at L5-S1.
A November 2006 private medical record notes that the Veteran has
difficulty rising from a seated position due to low back pain.
Range of motion was noted to be limited in all planes, with
tenderness to direct palpation over the paravertebral musculature
with a moderate amount of spasm extending into the gluteal region
bilaterally and tenderness over the SI joints and sciatic notch.
The impression was mechanical lower back pain due to degenerative
joint disease and spur formation.
A February 2008 VA treatment record notes deep stabbing pain
along the axial lumbar spine. The Veteran described the pain as
constant and further stated that standing or sitting for long
periods of time makes it worse. The Veteran denied any
significant paresthesias in either lower extremity. Sometimes
the pain shoots down her left lower extremity, stopping at the
bottom of the calf. There is no shooting pain down the right
lower extremity. The Veteran denied bowel or bladder
incontinence and saddle anesthesia. The lumbar spine was tender
to palpation of the axial spine. There was pain with forward
flexion, lateral bending, and extension. Straight leg raising
was negative. Clonus and Babinski were negative. Patellar and
ankle reflexes were 2+ and symmetrical. X-ray studies from
January 2008 revealed no significant pathology, no listhesis, and
normal disc height.
A March 2008 VA treatment record notes that the Veteran has
lumbar radiculopathy. The VA physician opined that the Veteran's
back complaints are more likely than not service-related;
although, functional impairment is mild. X-ray studies of the
lumbar spine were normal. The Veteran stated that her low back
pain was 9/10 in intensity. She does not have flare-ups. The
Veteran denied numbness, weakness, bladder complaints, and bowel
complaints. She does not need walking assistive devices. She
does not use a cane, crutches, walker, or brace. She can walk
for three to four hours. She is not unsteady and has no history
of falls. She is presently independent in all activities of
daily living. Examination of the lumbar spine revealed
exaggerated lumbar lordosis. Range of motion of the
thoracolumbar spine was full. Flexion was to 90 degrees,
extension was to 30 degrees, left and right lateral flexion and
left and right lateral rotation were each to 30 degrees. There
was no additional pain on range of motion and no further
limitation due to pain, fatigue, weakness, or lack of endurance
on repetitive use. There was tenderness on the mid to lower
lumbar spine midline. Sensory examination was intact to light
touch and pin prick in all dermatomes of the lower extremities.
Motor examination was full. Reflexes were 2+ bilaterally.
Straight leg raises were positive bilaterally at 45 degrees. No
report of incapacitating episodes is given.
A March 2008 VA initial physical therapy report notes that the
Veteran complained of occasional radiating pain down the lower
extremities. Range of motion of the lumbar spine revealed
forward bending at 70 percent of full range of motion (or
approximately 68 degrees), 25 percent of full extension (8
degrees), and 50 percent of right and left side bending and right
and left rotation (15 degrees). It is noted that there was
moderate tenderness at L3-5, at the right posterior superior
iliac spine, and at the posterior iliac crest. Straight leg
testing was positive bilaterally at 50 degrees. The iliac crests
were even but there was increased lumbar lordosis.
In reviewing the evidence of record, and giving the Veteran the
benefit of the doubt, the Board finds that the evidence supports
a rating of 20 percent for the Veteran's lumbosacral strain. In
this regard, the Board notes that although range of motion was
full and not painful at the March 2008 VA examination, and
although range of motion was decreased but not enough to warrant
a higher rating at the February 2008 VA appointment and at the
March 2008 physical therapy intake note, both the March 2008 VA
examiner and the March 2008 physical therapist note the presence
of exaggerated lumbar lordosis. The Board finds that this
qualifies for muscle spasm or guarding severe enough to result in
abnormal spinal contour such that a higher, 20 percent rating is
warranted. A rating in excess of 20 percent is not warranted
because at no time during the appeal has there been forward
flexion of the thoracolumbar spine to 30 degrees or less or
favorable ankylosis of the entire thoracolumbar spine. The range
of motion has, at the very least, been to 68 degrees, and there
has been no additional loss of motion due to pain, weakness,
fatigue, or lack of endurance. DeLuca, supra.
The Board has also considered whether the Veteran could receive a
higher rating for her lumbosacral strain based upon
incapacitating episodes. Initially, the Board notes that the
Veteran has not been diagnosed with intervertebral disc syndrome.
However, she has been diagnosed with various disc bulging.
Regardless, the record does not reflect, nor does the Veteran
contend, that she has had any incapacitating episodes whatsoever.
In sum, there is absolutely no evidence of incapacitating
episodes having a total duration of at least four weeks but less
than six weeks during the past 12 months; therefore, a higher
rating based upon incapacitating episodes is not warranted.
With regard to the neurological component of the Veteran's low
back disability, the Board notes in rating peripheral nerve
injuries and their residuals, attention should be given to the
site and character of the injury, the relative impairment and
motor function, trophic changes, or sensory disturbances. 38
C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from
neurological disorders is rated from 10 to 100 percent in
proportion to the impairment of motor, sensory, or mental
function.
With partial loss of use of one or more extremities from
neurological lesions, rating is to be by comparison with mild,
moderate, severe, or complete paralysis of the peripheral nerves.
The term incomplete paralysis indicates a degree of lost or
impaired function substantially less than the type of picture for
complete paralysis given with each nerve, whether due to varied
level of the nerve lesion or to partial regeneration.
When the involvement is only sensory, the rating should be for
the mild, or at most, the moderate degree. In rating peripheral
nerve disability, neuritis, characterized by loss of reflexes,
muscle atrophy, sensory disturbances, and constant pain, at times
excruciating, is to be rated on the scale provided for injury of
the nerve involved, with a maximum equal to severe, incomplete
paralysis. The maximum rating to be assigned for neuritis not
characterized by organic changes referred to in this section will
be that for moderate incomplete paralysis, or with sciatic nerve
involvement, for moderately severe incomplete paralysis. 38
C.F.R. § 4.123.
Diagnostic Code 8520 provides the rating criteria for paralysis
of the sciatic nerve, and therefore neuritis and neuralgia of
that nerve. Complete paralysis of the sciatic nerve, which is
rated as 80 percent disabling, contemplates foot dangling and
dropping, no active movement possible of muscles below the knee,
and flexion of the knee weakened or (very rarely) lost.
Disability ratings of 10 percent, 20 percent and 40 percent are
assignable for incomplete paralysis which is mild, moderate or
moderately severe in degree, respectively. A 60 percent rating
is warranted for severe incomplete paralysis with marked muscle
atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The
provisions of Diagnostic Code 8620 refer to neuritis of the
sciatic nerve, and Diagnostic Code 8720 refers to neuralgia of
the sciatic nerve.
The medical evidence reflects that in March 2008, the Veteran was
diagnosed with lumbar radiculopathy. Although her lower
extremity muscle strength has consistently been full, and
reflexes have been 2+ and symmetrical, the Veteran has complained
of radiating pain down her lower extremities multiple times (in
August 2002, December 2002, August 2006, March 2008). The March
2008 VA physician who diagnosed lumbar radiculopathy stated that
the functional effects were mild. Therefore, the Board finds
that a 10 percent rating for each lower extremity for the
neurological component of the lumbosacral strain is in order. A
rating in excess of 10 percent is not warranted because the
medical evidence shows that radiculopathy symptoms have only been
mild. There are no complaints that such symptoms are more than
mild, nor is there evidence documenting more than mild neurologic
findings. The Veteran has denied bowel incontinence and bladder
incontinence. In sum, the Board finds no evidence of organic
changes, such as muscle atrophy or trophic changes that would
warrant a higher rating or demonstrate more than a mild degree of
incomplete paralysis of the sciatic nerve. As such, a separate
10 percent rating, but no higher, is warranted for each lower
extremity for the neurological component of the Veteran's
lumbosacral strain.
III. Increased Rating for Adjustment Disorder
Chronic adjustment disorder is evaluated under 38 C.F.R. § 4.130,
Diagnostic Code 9440, which provides that a 50 percent evaluation
is warranted for occupational and social impairment with reduced
reliability and productivity due to such symptoms as: flattened
affect; circumstantial, circumlocutory, or stereotyped speech;
panic attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract thinking;
disturbances of motivation and mood; difficulty in establishing
and maintaining effective work and social relationships.
A 70 percent rating is warranted for occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals which
interfere with routine activities; speech intermittently
illogical, obscure, or irrelevant; near-continuous panic or
depression affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such as
unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including work
or a worklike setting); inability to establish and maintain
effective relationships.
A 100 percent evaluation is warranted where there is evidence of
total occupational and social impairment due to such symptoms as
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living;
disorientation to time or place; memory loss for names of close
relatives, own occupation or own name.
One factor to be considered is the GAF score which is a scale
reflecting the "psychological, social and occupational
functioning on a hypothetical continuum of mental health-
illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995);
see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing
the American Psychiatric Association's Diagnostic and Statistical
Manual for Mental Disorders, Fourth Edition (DSM IV), page 32].
A GAF Score of 11 to 20 indicates that there is some danger of
hurting oneself or others (e.g., suicide attempts without clear
expectation of death; frequently violent; manic excitement), or
an occasional failure to maintain minimal personal hygiene, or
gross impairment in communication. A GAF score of 21 to 30
indicates that behavior is considerably influenced by delusions
or hallucinations, or serious impairment in communication or
judgment (e.g., sometimes incoherent, acting grossly
inappropriately, suicidal preoccupation), or an inability to
function in almost all areas (e.g., stays in bed all day; no job,
home, or friends). A GAF Score of 31 to 40 indicates some
impairment in reality testing or communication (e.g., speech at
times illogical, obscure, or irrelevant), or where there is major
impairment in several areas such as work or school, family
relations, judgment, thinking, or mood (e.g., depressed man
avoids friends, neglects family, and is unable to work). A GAF
of 41 to 50 indicates serious symptoms (e.g., suicidal ideation,
severe obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational, or school functioning (e.g.,
few friends, unable to keep a job). A GAF of 51 to 60 indicates
moderate symptoms (e.g., flattened affect and circumstantial
speech, occasional panic attacks) or moderate difficulty in
social, occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers). A GAF of 61 to 70 indicates
some mild symptomatology (e.g., depressed mood and mild insomnia)
or some difficulty in social, occupational, or social functioning
(e.g., occasional truancy, or theft within the household), but
generally functioning pretty well, with some meaningful
interpersonal relationships.
While the Rating Schedule does indicate that the rating agency
must be familiar with the DSM IV, it does not assign disability
percentages based solely on GAF scores. See 38 C.F.R. § 4.130.
Accordingly, GAF scores do not automatically equate to any
particular percentage in the Rating Schedule. Rather, they are
but one factor to be considered in conjunction with all the other
evidence of record.
Service connection for adjustment disorder with mixed anxiety and
depressive symptoms was originally granted in an August 2006
rating decision. A 10 percent rating was granted, effective July
9, 2001, and a 50 percent rating was granted beginning on August
11, 2006. The Veteran did not file a notice of disagreement with
this decision.
In December 2007, the Veteran filed a claim for an increased
rating for his adjustment disorder with mixed anxiety and
depressive symptoms. As such, the claim is for entitlement to a
rating in excess of 50 percent for adjustment disorder with mixed
anxiety and depressive symptoms.
The medical evidence of record shows that in August 2006, the
Veteran had a relationship with her younger sister, father, step-
mother, step-brother, and step-sister. She complained of feeling
"jittery." She is tense and constantly on edge. She is more
irritable and often trivial matters trigger explosive expressions
of anger. She has lost over 19 pounds and she becomes nauseous
when she eats. On examination she was well-groomed and casually,
but neatly attired. She was fully oriented and she gave no
evidence of acute thought disorder or homicidal/suicidal
ideation. She was personable, cooperative, alert, animated, and
engaging. Beneath her exterior presentation are intense feelings
of discontent and anger that are displayed periodically in
passive aggressive, petulant, and fault finding behavior. Her
foundation for effective psychological regulation and socially
acceptable interpersonal conduct appears deficient. She
experiences marked emotional, cognitive, and behavioral
dysfunction. She has 100 percent disability in the areas of
social interaction and emotional behavior. She has 93 percent
disability in the area of work, 84 percent disability in the area
of alertness behavior, 48 percent disability in the area of
recreation and pastime activities, and 10 to 12 percent
disability in the areas of sleep and rest and home management.
Her overall level of functional disability is around 70 percent.
Her GAF score is 40.
A March 2007 VA social work note indicates that the Veteran was
well-groomed, had good eye contact, and good affect. A June 2007
VA social work consult notes that she had a flattened affect, was
teary at points, and expressed multiple emotions about her
current situation. She reported feeling irritable, angry, and
"about to lose it" when she was waiting for her mother. She
felt so "out of control" that she did not return home. She has
made several new positive changes recently with her relationship
with her mother.
A July 2007 VA psychiatric note reflects that the Veteran was
cooperative, attentive, had fluent speech, and had a labile,
dysphoric, and irritable mood. Her affect was unremarkable.
There was no evidence or a formal thought disorder. There were
no specific psychotic symptoms. She recently experienced
suicidal ideation, but currently denies active or passive
suicidal ideation. She also denied homicidal ideation. The
assessment was that the Veteran has a combination of mood
disorder (probably major depression), anxiety disorder (panic
disorder and obsessive-compulsive disorder), personality disorder
(predominantly borderline personality disorder) and marijuana use
disorder. Her panic attacks seem to begin as panic attacks, but
they then become periods of anger that are probably more in the
borderline personality spectrum. She is high-functioning,
working in a doctor's office and attending nursing school. Her
ability to function is beginning to deteriorate. Her GAF score
was 50.
A January 2008 VA psychiatric note indicates that the Veteran's
GAF score in October 2007 was 60. She said she was feeling
better. Her mood was described as "okay." She is only
sleeping four hours in a 24 hour day. She complained of night
terrors. She does not remember the content clearly but she has
night sweats. She endorsed racing thoughts. She denied suicidal
ideation, street drug use, and alcohol use. She said that her
household is more organized than before. She was cooperative,
attentive, had fluent speech, and a bright affect. Her thought
processes were notable for pressured speech, circumstantiality,
and tangentiality. Her mood was "okay" with some lability.
There were no specific psychotic symptoms. She seemed slightly
hypomanic, both with respect to her affect and her thought
processes, as well as the decreased need for sleep.
A March 2008 VA social work note indicates that the Veteran works
two days a week and continues going to school for nursing.
A March 2008 VA examination report notes that the Veteran
reported feeling very anxious, always feeling angry, and having
an inability to control herself. She reported sadness, anxiety,
restlessness, and difficulties controlling her temper. She
reported frequent verbal arguments, even with people in the
streets. She has frequent crying, decreased energy, and poor
sleep. She has decreased appetite and decreased sexual desires.
On examination she was alert and cooperative. She had good eye
contact, soft speech, and her mood was depressed. Her affect was
anxious and labile. There were no overt delusions. She denied
hallucinations and suicidal and homicidal ideation. Memory was
noted to be fair. She was fully oriented and her insight and
judgment were fair. The diagnosis was dysthymic disorder. Her
GAF score was 60. The examiner stated that there is "some
degree" of family, functional, and occupational impairment.
An August 2008 VA social work note indicates that the Veteran was
seen for bipolar disorder. The Veteran was in a good mood and
was dressed nicely. She had been in Puerto Rico for 10 days
previously by herself. She spoke of how well her father and
boyfriend took care of her children while she was gone. She
spoke about all the times she has expected her mother and sister
to be different. She expressed motivation to return to school
and complete her nursing program.
An October 2008 VA social work note indicates that the Veteran
reported feeling overwhelmed with financial responsibilities.
She recently attended a job fair and thought that she was being
hired for a full time position. There was a mix up and the job
was given to someone else. An October 2008 addendum notes that
the Veteran has been feeling fairly good. However, she endorsed
moment to moment mood swings, primarily from euthymia to
irritability. When she did not get the full time job, she had
passive thoughts of suicide. She has been taking a sociology
course, which she is doing well in. Mental status examination
revealed that she was cooperative, attentive, had fluent speech,
and was fully oriented. There was no evidence of cognitive
impairment. Her mood had some lability and irritability. Her
affect was bright. Her thought processes were somewhat
hyperverbal and circumstantial. She was easily redirected.
There was no psychotic thought content. She denied recurrence of
suicidal ideation and denied homicidal ideation. She was offered
hospitalization because of her transient passive suicidal
ideation. She declined. Her principal symptoms (moment to
moment lability, irritability, and sporadic suicidal ideation)
are caused by borderline personality disorder.
After review of the medical evidence, the Board finds that the
Veteran's adjustment disorder with mixed anxiety and depressive
symptoms is appropriately rated as 50 percent disabling
throughout the entire appeal period. None of the evidence
reflects that the criteria for a higher, 70 percent rating are
met. In this regard, there is suicidal ideation and the Veteran
has been diagnosed with obsessive compulsive disorder; however,
there is no evidence of such rituals which interfere with routine
activities. Her speech has been not been intermittently
illogical, obscure or irrelevant. However, she complains of
constant panic and depression, as well as impaired impulse
control. Importantly, according to the October 2008 VA examiner,
these symptoms are not the result of the service-connected
adjustment disorder with mixed anxiety and depression. Instead,
they are by and large a product of the nonservice-connected
borderline personality disorder. There is also no evidence
whatsoever of spatial disorientation, neglect of personal
appearance and hygiene, and while there is difficulty in adapting
to a work-like environment, this is due mostly to the bipolar
personality disorder, which is not service connected.
The Veteran has either been employed full or part time, or in
school for nursing throughout the entire appeal period. There is
evidence of stress over her workload and financial matters;
however, her most debilitating symptoms have been related to the
nonservice-connected borderline personality disorder. The
Veteran has had flattened affect, circumstantial, circumlocutory
or stereotyped speech, panic attacks, fair memory and judgment,
and disturbances of motivation in mood. When considering the
disability picture as a whole, the Veteran's particular
disability picture falls more squarely in line with the criteria
for a 50 percent rating. The criteria for a70 percent rating are
not met. Therefore, a higher rating is denied.
At no time during the appeal period has the Veteran's adjustment
disorder been manifested by greater disability than contemplated
by the currently assigned rating under the designated diagnostic
code. Accordingly, staged ratings are not in order and the
assigned rating is appropriate for the entire period of the
Veteran's appeal. Hart, supra. .
IV. Increased Rating for Bilateral Cubital Tunnel Syndrome
The Veteran's cubital tunnel syndrome is rated as noncompensable
for the right and left sides under 38 C.F.R. §4.124a, Diagnostic
Code 8515. Under that code, a 10 percent rating is warranted for
mild incomplete paralysis of the major or minor median nerve. A
30 percent rating is warranted for moderate incomplete paralysis
of the major median nerve. A 20 percent rating is warranted for
moderate incomplete paralysis of the minor median nerve. A 50
percent rating is warranted for severe incomplete paralysis of
the major median nerve. A 40 percent rating is warranted for
severe incomplete paralysis of the minor median nerve. A 70
percent rating is warranted for complete paralysis of the major
median nerve. A 60 percent rating is warranted for complete
paralysis of the minor median nerve. 38 C.F.R. §4.124a,
Diagnostic Code 8515.
Service connection for bilateral cubital tunnel syndrome was
granted in a January 1996 rating decision. A noncompensable
rating was assigned for the right and for the left, effective
January 6, 1995. The Veteran did not appeal this decision.
In a February 2001 rating decision, the RO denied increased
ratings for bilateral cubital tunnel syndrome. The Veteran did
not appeal this decision. In December 2005, the Veteran filed a
new claim for entitlement to an increased rating for bilateral
cubital tunnel syndrome. In the March 2007 rating decision on
appeal, the RO denied compensable ratings for right cubital
tunnel syndrome and for left cubital tunnel syndrome. The
Veteran perfected her appeal for an increased rating.
An October 2005 private orthopedic consultation notes the Veteran
is diagnosed with cubital tunnel syndrome and carpal tunnel
syndrome. On examination there was a positive Tinel's and a
positive Phalen's. Neurovascularly, the Veteran was intact.
An April 2006 VA examination report indicates that the Veteran is
right handed. She complained of hand pain and numbness
bilaterally. She gets tingling, cold, sweaty, and a dull pain in
arms up to upper forearm. She also has decreased strength and
finds it difficult to put rubber bands in her hair. Over the
years she has had exacerbations and remissions. She reportedly
has done a lot of activity recently and she feels that it is
worse. She wears splints a few hours a day. She works as a
manager in a doctor's office. On examination, motor strength was
full, there was no atrophy, and reflexes were 2+. Sensory
pinprick and vibration were okay, including in hands.
Coordination was okay. The assessment was carpal tunnel
syndrome, right more than left.
A February 2008 VA treatment record notes that the Veteran has
had left arm pain for the past six to eight weeks, but had been
treated for bilateral carpal tunnel syndrome and bilateral
cubital tunnel syndrome with splints. She has right hand
numbness when she wakes up. The left upper extremity exhibits
both pain and weakness. The pain starts at the elbow and
radiates downward to the first three fingers. Pain occurs every
day and Tramadol helps with the pain but not with the numbness.
She has to shake both hands out when she wakes up in the morning
because of pain and numbness. On examination, the left upper
extremity had full range of motion with pain. The left upper
extremity was colder and there was swelling on the left forearm.
Tinel's sign at wrist and elbow on the left was positive, as was
compression test. The left upper extremity was tender to
palpation. Grip was near full and sensation was intact. Right
upper extremity exhibited full painless range of motion.
Strength was full and sensation was intact. Tinel's sign was
positive at the wrist and compression test was positive.
A March 2008 VA neurology examination notes that the Veteran
complained of hand pain and numbness bilaterally. An EMG
addendum revealed no electrophysiological evidence of median
nerve compression at the wrists or ulnar nerve entrapment at the
elbows. However, there were increased amplitudes of the right
flexor carpi ulnaris and right first dorsal interossi, both C8-T1
nerve roots. A repeat study was suggested in three months. The
examining physician noted that although the Veteran does not have
electrophysiologic evidence of carpal tunnel syndrome, history
and physical examination are consistent with it.
An April 2008 VA occupational therapy hand evaluation notes a
prior diagnosis of bilateral carpal tunnel syndrome, and a
current diagnosis of left lateral epicondylitis. There was
tingling of the left hand from carpal tunnel syndrome. Tinel's
sign was positive at left cubital tunnel and bilateral carpal
tunnel, Cozen's sign was positive, and middle finger test was
positive. Sensation was intact. An elbow sleeve was issued to
be worn during activities. The assessment was two-month history
of lateral left elbow pain, severe lateral epicondylar
tenderness.
Based upon the foregoing, the Board finds that the Veteran's
bilateral cubital tunnel syndrome appropriately rated as
noncompensably disabling throughout the entire evaluation period.
In this regard, there is no EMG evidence of any pathology
whatsoever to the median or ulnar nerve. At this point, it does
not reflect that there is mild incomplete paralysis of the median
or any other nerve. As such, a higher, 10 percent rating is not
in order.
At no time during the appeal period has the Veteran's bilateral
cubital tunnel syndrome been manifested by greater disability
than contemplated by the currently assigned ratings under the
designated diagnostic codes. Accordingly, staged ratings are not
in order and the assigned ratings are appropriate for the entire
period of the Veteran's appeal. Hart, supra.
V. Increased Rating for Migraine Headaches
The Veteran's migraine headaches are rated as 30 percent
disabling under 38 C.F.R. §4.124a, Diagnostic Code 8100. Under
Diagnostic Code 8100, a 30 percent rating is assigned for
migraine with characteristic prostrating attacks occurring on an
average once a month over the last several months. A maximum
evaluation of 50 percent is awarded when migraine is
characterized by very frequent completely prostrating and
prolonged attacks productive of severe economic inadaptability.
38 C.F.R. § 4.124a, Diagnostic Code 8100.
After review of the evidence of record, the Board finds that the
evidence supports a 30 percent rating, but no higher, for the
Veteran's migraine headaches. In this regard, VA treatment
records document recurring migraine headaches varying from three
to four times a month. A July 2004 VA neurology follow-up note
indicates that the Veteran was last seen one to two years
earlier. The Veteran complained of ongoing headaches with some
type of visual blurriness in the left eye with headaches setting
in about seven hours later. She previously responded well to
Depakote, but she became pregnant and stopped taking it.
In April 2006, a VA neurology clinic follow-up note indicates
that the headaches cause nausea. The Veteran reportedly needs a
dark place. She cannot function during a migraine. A March 2008
VA neurologic examination report notes that she has headaches
where she sees spots in her left eye, which she gets every six or
seven weeks. She also may get a headache behind the right eye.
She needs a dark room and cannot function.
Throughout the appeal period, the Veteran has been employed
either part time or full time and she has been attending school.
There is no objective evidence that the Veteran has lost any
significant time from work or had significant absences from class
due to her migraine headaches such as to reflect severe economic
inadaptability. In this regard, there is a September 2006 letter
from the physician whose office she works in, which states that
the Veteran has been working on a part time basis for many years;
however, lately she has been having recurrent medical problems
for which she has to have hospital and doctor visits for
treatments. This has caused her pay to suffer because she has
not been working on her normal schedule. This letter does not
rise to the level of significant absences resulting in severe
economic disability. It does not refer to migraine headaches
whatsoever as the reason for the medical visits, but most of all,
it merely reiterates what the treatment records show. The
treatment records show multiple complaints for headaches, but do
not reflect any complaints or findings of an inability to work or
go to school. As such, it cannot be said that her migraine
headaches are productive of severe economic inadaptability, as is
required for a higher, 50 percent rating. Therefore, the
currently assigned 30 percent rating is clearly warranted under
Diagnostic Code 8100.
At no time during the appeal period have the Veteran's migraine
headaches been manifested by greater disability than contemplated
by the currently assigned rating under the designated diagnostic
code. Accordingly, staged ratings are not in order and the
assigned rating is appropriate for the entire period of the
Veteran's appeal. Hart, supra.
VI. Entitlement to TDIU
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which
fails to allege specific error of fact or law in the
determination being appealed. A Substantive Appeal may be
withdrawn in writing at any time before the Board promulgates a
decision. 38 C.F.R. § 20.202 (2009). Withdrawal may be made by
the appellant or by his or her authorized representative. 38
C.F.R. § 20.204. The appellant, at the Travel Board hearing
before the undersigned in December 2009, has withdrawn her appeal
for the issue of entitlement to a TDIU. Such withdrawal is
effective the date the notice was received at the Board.
38 C.F.R. § 20.204(b)(3). Accordingly, the Board does not have
jurisdiction to review the appeal for the issue of entitlement to
TDIU.
VII. Extraschedular Consideration
The Board has also considered whether this case should be
referred to the Director of the Compensation and Pension Service
for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1).
In this case there are no exceptional or unusual factors with
regard to the Veteran's lumbosacral strain, adjustment disorder,
bilateral cubital tunnel syndrome, or her migraine headaches.
The threshold factor for extraschedular consideration is a
finding that the evidence before VA presents such an exceptional
disability picture that the available schedular evaluations for
that service- connected disability are inadequate. See Fisher v.
Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will
apply unless there are 'exceptional or unusual' factors which
render application of the schedule impractical."). Here, the
rating criteria reasonably describe the Veteran's disability
level and symptomatology and provide for additional or more
severe symptoms for her disabilities than currently shown by the
evidence; thus, her disability picture for each disability is
contemplated by the rating schedule, and the assigned schedular
evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet.
App. 111, 115 (2008). Consequently, referral for extraschedular
consideration is not warranted.
ORDER
New and material evidence having been received, reopening of the
claim for entitlement to service connection for a right knee
disorder is granted.
A 20 percent rating for the orthopedic manifestations of the
Veteran's lumbosacral strain is granted, subject to the criteria
governing the payment of monetary benefits.
A separate 10 percent rating for right lower extremity
radiculopathy is granted, subject to the criteria governing the
payment of monetary benefits.
A separate 10 percent rating for left lower extremity
radiculopathy is granted, subject to the criteria governing the
payment of monetary benefits.
A rating in excess of 50 percent for adjustment disorder with
mixed anxiety and depressive symptoms is denied.
A compensable rating for right cubital tunnel syndrome is denied.
A compensable rating for left cubital tunnel syndrome is denied.
The appeal for the issue of entitlement to TDIU is dismissed.
REMAND
Bilateral Knee Disabilities
Although the Board found sufficient evidence and information to
reopen the claim for entitlement to service connection for a
right knee disorder, the Board finds that further development is
warranted before the claim can be adjudicated on the merits.
Moreover, additional development is warranted with respect to the
claim for entitlement to service connection for a left knee
disorder.
Regarding the right knee, there are no service treatment records
showing complaints or treatment for right knee problems.
However, just months after service separation, at the July 1995
VA examination, the Veteran had a diagnosis of patellofemoral
syndrome of the right knee (although an X-ray study of the right
knee was normal). Additionally, the Veteran originally claimed
entitlement to service connection for patellofemoral
syndrome/knee strain, without specifying which knee (in her
January 1995 claim). The RO adjudicated a right knee strain in
January 1996 and the July 1995 VA examiner took X-ray studies of
the right knee only, despite bilateral knee complaints. In any
event, the Veteran has never undergone a VA examination with a
medical opinion to determine the likely etiology of the current
right knee problems. Therefore, one should be scheduled.
Regarding the left knee, the service treatment records show
complaints of left knee pain in February and March 1993. Despite
additional complaints just months after discharge from service,
at the July 1995 VA examination, the left knee was found to be
normal on examination and the examiner did not diagnose any left
knee disorder. However, the examiner was focused on the right
knee. Moreover, the Veteran is competent to state that she has
had left knee problems ever since service. In sum, there is
evidence in the service treatment records of complaints of left
knee pain and findings of patellofemoral syndrome of the left
knee, and there is evidence of left knee symptoms just months
after service. As the Veteran has never undergone a VA
examination in order to determine the likely etiology of the
current left knee disability, one should be scheduled.
Bilateral Carpal Tunnel Syndrome
With respect to the service connection claim for bilateral carpal
tunnel syndrome, the Board notes that where a veteran served for
at least 90 days during a period of war or after December 31,
1946, and manifests organic disease of the nervous system to a
degree of 10 percent within one year from the date of termination
of such service, such disease shall be presumed to have been
incurred or aggravated in service, even though there is no
evidence of such disease during the period of service. This
presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002);
38 C.F.R. §§ 3.307, 3.309 (2007).
The Veteran claims that she is entitled to service connection for
bilateral carpal tunnel syndrome because it was incurred during
service. A review of the service treatment records note that the
Veteran was seen on numerous occasions between 1992 and 1995 for
complaints of upper extremity pain and numbness. The diagnoses
included bilateral cubital tunnel syndrome as well as bilateral
carpal tunnel syndrome. However, in July 1994, a Report of
Medical Board notes that physical examination and evaluation
resulted in a diagnosis of bilateral cubital tunnel syndrome.
A July 1995 VA examination notes that EMG studies of both
extremities revealed values consistent with bilateral carpal
tunnel syndrome. Another July 1995 VA examination report notes a
diagnosis of possible cubital tunnel syndrome. A letter received
in July 2000 from G. LeBrun, M.D., notes that the Veteran was
treated for carpal tunnel syndrome. An August 2000 VA
examination report notes that a July 1995 EMG/MCV study of the
upper extremities was consistent with a diagnosis of carpal
tunnel syndrome; however, current nerve conduction studies were
inconsistent with such a diagnosis. Bilateral carpal tunnel
syndrome was diagnosed based only upon clinical evaluation (not
confirmed by electrical testing). Another August 2000 VA
examination report notes that there was no appreciable change in
the hand since last examination in 1995. The diagnosis was
carpal tunnel syndrome, bilaterally. However, neurological
testing was inconclusive for either bilateral cubital or carpal
tunnel syndrome.
An October 2005 private treatment record notes diagnoses of
bilateral cubital tunnel syndrome and bilateral carpal tunnel
syndrome. An April 2006 VA neurology outpatient treatment record
notes a diagnosis of carpal tunnel syndrome, right more than
left. It was noted that the Veteran brought in a March 2006 EMG
study from A. Khan, M.D., a neurologist, which revealed "right
CTS." An April 2006 VA neurology examination report notes that
the Veteran brought a March 2006 EMG study which revealed "right
CTS." The assessment was "CTS, right more than left." A
February 2008 VA orthopedic follow-up note indicates that the
Veteran has bilateral carpal tunnel syndrome and left cubital
tunnel syndrome.
The Board notes that a VA examination is necessary if the
evidence of record (a) contains competent evidence that the
claimant has a current disability, or persistent or recurrent
symptoms of disability; (b) establishes that the Veteran suffered
an event, injury, or disease in service; (c) indicates that the
claimed disability or symptoms may be associated with the
Veteran's service or other service-connected disability, and (d)
does not contain sufficient medical evidence for VA to make a
decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38
C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006).
In this case, there is evidence in the service treatment records
of carpal tunnel syndrome, there is evidence of a diagnosis of
carpal tunnel syndrome within a year of discharge from service,
and there are ongoing diagnoses of carpal tunnel syndrome since
service. Therefore, a VA examination with opinion is warranted.
Ulcers
Service connection may be granted for disability which is
proximately due to or the result of a service-connected disease
or injury. 38 C.F.R. § 3.310(a). In Allen v. Brown, 7 Vet. App.
439 (1995), the Court held that when aggravation of a nonservice-
connected condition is proximately due to or the result of a
service- connected condition, a veteran shall be compensated for
the degree of disability (but only that degree) over and above
the degree of disability existing prior to the aggravation.
Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to
implement the holding in Allen; however, under the facts of this
case the regulatory change does not impact the outcome of the
appeal.
Service connection on a secondary basis may not be granted
without medical evidence of a current disability and medical
evidence of a nexus between the current disability and a service-
connected disability. See Wallin v. West, 11 Vet. App. 509, 512-
514 (1998).
In the absence of proof of a current disability, there can be no
valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992)
(indicating service connection presupposes a current diagnosis of
the condition claimed).
The Veteran claims that she is entitled to service connection for
ulcers because they are caused by her service-connected
adjustment disorder with mixed anxiety and depressive symptoms.
With respect to the claim on a direct basis, the service
treatment records show that in September 1993, the Veteran was
seen for lower left quadrant abdominal pain. After examination,
the diagnosis was muscle strain. In January 1994 the Veteran was
seen for diarrhea, sore throat, sinus drainage, and chills. The
assessment was viral syndrome/UGE. Three days later in January
1994, the Veteran was seen for resolving UGE/viral syndrome.
In the Veteran's original January 1995 claim, she filed a claim
for entitlement to service connection for abdominal pain. The
report of a July 1995 VA examination notes complaints of daily
heart burn and epigastric burning. Endoscopy was normal. The
diagnoses were gastroesophageal reflux disease, rule-out duodenal
ulcer, and rule-out gall bladder disease. A July 2001 VA
treatment record notes that the Veteran was seen for diarrhea,
muscle cramps, and mild fever, but no pain or vomiting. The
diagnosis was gastroenteritis.
An April 2005 treatment record notes that the Veteran complained
of heartburn, occasionally spitting up blood, and epigastric
bloating. A September 2008 GI-Liver Consult report notes recent
EGD was negative. The Veteran was noted to be on Pancrease, a
proton-pump inhibitor medication, and dietary modification. She
was noted to feel much improved. The impression was probable
gastroesophageal reflux disease (GERD), irritable bowel syndrome
(IBS).
A March 2008 VA outpatient care note indicates diagnoses of GERD,
peptic ulcer disease, duodenitis, and IBS. Small bowel biopsy
done in September 2006 noted chronic nonspecific duodenitis, and
moderate Brunner gland hyperplasia. Colon biopsy revealed
chronic nonspecific colitis, and mild with lymphoid aggregate.
A March 2008 VA treatment record notes that the Veteran
complained of a history of abdominal pain, usually on the right
side, improved with eating. Ultrasound revealed normal liver,
spleen, bile duct, and gallbladder. The Veteran was scheduled
for EGD. The Veteran's history of abdominal pain, diarrhea, and
nausea were noted to be etiologically related to IBS or celiac
sprue, but less likely related to peptic ulcer disease. An April
2008 VA treatment record notes complaints of right side abdominal
pain.
An August 2008 VA treatment record notes that the esophagus,
stomach, and duodenum were all normal. No source of the
abdominal pain was identified. Biopsies were taken from the
antrum to rule out H. Pylori. The small intestine findings were
abnormal. The Veteran was supposed to follow up to have a
colonoscopy and obtain the biopsy results. The Board notes that
the results of the biopsies and the colonoscopy, if performed,
are not contained in the claims file. Therefore, they should be
obtained. In addition, in light of the abdominal pain reported
during service, the complaints of abdominal pain within one year
of service discharge, and the current gastrointestinal complaints
and diagnoses, the Board finds that a VA gastrointestinal
examination should be performed in order to identify any and all
current gastrointestinal disabilities, and the likely etiology of
such.
Ongoing medical records should also be obtained. 38 U.S.C.A.
§ 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App.
611 (1992) (VA medical records are in constructive possession of
the agency, and must be obtained if the material could be
determinative of the claim).
Accordingly, the case is REMANDED for the following action:
1. Obtain copies of all up-to-date
treatment records dated from August 2008 to
the present regarding treatment for the
Veteran's bilateral knee disorders, ulcers
and bilateral carpal tunnel syndrome. All
records obtained should be added to the
claims folder. If requests for any private
treatment records are not successful, VA
should inform the Veteran of the
nonresponse so that she will have an
opportunity to obtain and submit the
records herself, in keeping with her
responsibility to submit evidence in
support of his claim. 38 C.F.R § 3.159
(2009).
2. Schedule the Veteran for a VA
orthopedic examination to determine the
nature and etiology of any currently
present bilateral knee disability. The
claims folder, to include a copy of this
Remand, must be made available to and be
reviewed by the examiner.
All indicated studies and tests should be
accomplished, and all clinical findings
should be reported in detail.
Based upon the claims folder review, the
examination results and sound medical
principles, the examiner should provide an
opinion with respect to each currently
present knee disability as to whether it is
at least as likely as not (ie., a 50
percent or better probability) that the
disability is etiologically related to
service. Attention is directed to the
February and March 1993 service treatment
records showing complaints of left knee
pain and diagnosis of patellofemoral
syndrome of the left knee, as well as the
July 1995 VA examination report, and the
March 2008 VA physical therapy note that
indicates that the Veteran reported that
she began having bilateral knee pain two
and a half years earlier.
The examiner should set forth the complete
rationale for all opinions expressed and
conclusions reached.
3. Schedule the Veteran for a VA
neurological examination to determine the
nature and etiology of any currently
present carpal tunnel syndrome. The claims
folder, to include a copy of this Remand,
must be made available to and be reviewed
by the examiner.
All indicated studies and tests should be
accomplished, and all clinical findings
should be reported in detail. A diagnosis
of right/left carpal tunnel syndrome should
be ruled in or ruled out.
Based upon the claims folder review, the
examination results and sound medical
principles, the examiner should provide an
opinion with respect to any currently
present carpal tunnel syndrome as to
whether it is at least as likely as not
(ie., a 50 percent or better probability)
that the disability is etiologically
related to service. Attention is directed
to the service treatment records showing
diagnoses of carpal tunnel syndrome, as
well as the post-service medical evidence
showing a diagnosis of carpal tunnel
syndrome.
The examiner should set forth the complete
rationale for all opinions expressed and
conclusions reached.
4. The Veteran should be scheduled for a
VA gastrointestinal examination in order to
determine the nature and etiology of any
currently present ulcers/gastrointestinal
disorder(s). The claims folder, to include
a copy of this Remand, must be made
available to and be reviewed by the
examiner.
All indicated studies and tests should be
accomplished, and all clinical findings
should be reported in detail.
Based upon the claims folder review, the
examination results and sound medical
principles, the examiner should provide an
opinion with respect to each currently
present gastrointestinal disability as to
whether it is at least as likely as not
(ie., a 50 percent or better probability)
that the disability is etiologically
related to service. Attention is directed
to the January 1994 service treatment
records showing findings of
gastroenteritis, as well as the July 1995
VA examination showing complaints of
abdominal pain.
The examiner should set forth the complete
rationale for all opinions expressed and
conclusions reached.
If the examiner finds that any current
gastrointestinal disorder is not
etiologically related to active service,
the examiner should express an opinion as
to whether any current gastrointestinal
disorder is at least as likely as not (ie.,
a 50 percent or better probability) caused
or aggravated by (permanently worsened by)
the service-connected adjustment disorder
with mixed anxiety and depressive symptoms.
If the adjustment disorder with mixed
anxiety and depressive symptoms is found to
have aggravated the gastrointestinal
disorder, the examiner should, to the
extent possible, quantify the degree of
aggravation.
The examiner should set forth the complete
rationale for all opinions expressed and
conclusions reached.
5. Then, after any other indicated
development is completed, readjudicate the
Veteran's claims. If the benefits sought
on appeal remain denied, the Veteran and
his representative should be furnished a
supplemental statement of the case and
provided an appropriate opportunity to
respond before returning the claims file to
the Board for further appellate
consideration of the claims.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs